PADAM CHAND Vs. RAM LAL

JUDGEMENT

(1.) THIS is a defendants' first appeal under paragraph 31 (b) of the Himachal Pradesh (Courts) Order, 1948, against the judgment and decree of the learned Senior Subordinate Judge of Jubbal, dated 17 1 1951.

(2.) IN , execution of a money decree obtained by Jawahar Singh against Mussadi Ram a pro note dated 18 Bhado 1995 B., for Rs. 3,040/ , carrying interest at 12 per cent per annum, executed by the said Jawahar Singh and Harsukh Das in favour of the said Mussadi Ram, was attached and purchased in a sale by public auction by Ram La'l on 20 Har 2001 B. About two months later, i.e., on 17 Bhado 2001 B., Ram Lal filed the suit giving rise to the present appeal against the aforesaid executants of the pronote, Jawahar Singh an3 Harsukh Das, for recovery of Rs. 3,040/ principal plus Rs. 2,187/ interest at the said rate, totalling Rs. 5,227/ , impleading Mussadi Ram as a pro forma defendant. Jawahar Singh died during the pendency of the suit and his two widows and four minor sons under the guardianship ad litem of one of the widows were brought on record as his legal representatives. Mussadi Ram also died during the pendency of the suit and his son Jai Lal was substituted in his place.

(3.) A preliminary objection was taken on behalf of the plaintiff respondent that as in the present appeal Sri Thakar Das Advocate appearing for the appellants held no Vakalatnama on behalf of Harsukh Das appellant the appeal was incompetent. It was further contended that the appeal was incompetent as a whole as, according to the learned counsel for the plaintiff respondent, the decree under appeal was passed jointly against all the appellants. So far as the latter contention is concerned, it has no force because under the decree in question the liability of the various persons against whom it was passed, is several. Even if it were joint, the liability of each of the judgment debtors would, in view of the provisions of Section 43 of the Contract Act, be both joint and several. It follows, therefore, that in case, the present appeal be incompetent on behalf of Harsukh Das, it would not be incompetent so far as the other defendants appellants are concerned. That the appeal is incompetent on behalf of Harsukh Das defendant is, in my opinion, correct, and this for the following reasons.